Senate confirms Gorsuch

Posted Fri, April 7th, 2017 1:33 pm by Amy Howe

By a vote of 54-45, the Senate today confirmed Judge Neil Gorsuch to be the 113th justice of the U.S. Supreme Court. The confirmation ended the battle over the vacancy created by the death of Justice Antonin Scalia on February 13, 2016. Shortly after Scalia’s death, Senate Republicans vowed to block any nominee that then-President Barack Obama put forward, arguing that the next president – rather than Obama – should have the opportunity to appoint Scalia’s successor. Obama attempted to call the Republicans’ bluff by nominating Chief Judge Merrick Garland, a widely respected judge on the U.S. Court of Appeals for the District of Columbia Circuit, to replace Scalia, but Republicans declined to hold hearings on the Garland nomination, much less bring the nomination up for a vote. That left the door open for President Donald Trump to nominate a replacement for Scalia; his nomination of Gorsuch, a 49-year-old with sterling qualifications, is widely regarded as one of the most successful moves in the young administration.

Today’s vote came as no surprise. The only real uncertainty in the process had been whether the Democrats would be able to muster the 41 votes needed to filibuster Gorsuch’s nomination. They did, which prompted Senate Republicans to invoke the so-called “nuclear option” – a change to the Senate rules to break the filibuster and allow a vote on the nomination with a simple majority of senators. Senate Democrats had invoked the nuclear option in 2013, to confirm several Obama nominees to the lower federal courts, but they had not changed the rules for Supreme Court nominations.

The vote broke down largely on party lines. Only three Democrats voted in favor of Gorsuch: Senators Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia and Joe Donnelly of Indiana. All of the Republicans present in the Senate today voted for Gorsuch; one Republican senator, Johnny Isakson of Georgia, is recovering from back surgery and did not cast a vote. All of the remaining Democrats voted against the Gorsuch nomination; they were joined by two Independents – Angus King of Maine and Bernie Sanders of Vermont.

The Supreme Court is currently in recess. The justices will meet for their private conference next Thursday, April 13, and they will return to the bench on Monday, April 17, for arguments. It now appears that Gorsuch will join them: A press release from the Supreme Court’s Public Information Office reports that Gorsuch will be sworn in on Monday in two separate ceremonies – a private ceremony at the court and a public ceremony at the White House. Chief Justice John Roberts will preside over the ceremony at the court, and Justice Anthony Kennedy (for whom Gorsuch once clerked) will administer the oath at the White House.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.